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The team is joined by Guest Kats Rosie Burbidge, Stephen Jones, Mathilde Pavis, and Eibhlin Vardy, and by InternKats Verónica Rodríguez Arguijo, Hayleigh Bosher, Tian Lu and Cecilia Sbrolli.

Saturday, 22 July 2017

As this blog reported,
on 14 June last the Court of Justice of the European Union (CJEU) issued its
much-awaited judgment
in Stichting Brein v Ziggo BV and XS4All Internet BV, C-610/15 (the ‘Pirate Bay’ case).

There, the Court developed
further its construction of the right of communication to the public
within Article 3(1) of the InfoSoc
Directive, and clarified under what conditions the operators of an
unlicensed online file-sharing platform are liable for copyright infringement.

The CJEU judgment builds
upon the earlier Opinion of Advocate General (AG) Szpunar in the same
case [reported
here],
yet goes beyond it. This is notably so with regard to the consideration of the
subjective element (knowledge) of the operators of an online platform making
available copyright content. Unlike AG Szpunar, the Court did not refer
liability only to situations in which the operators of an online platform have
acquired actual knowledge of third-party infringements, but
also included situations of constructive knowledge (‘could not
be unaware’) and, possibly, even more.

Overall, the CJEU decision
is not limited to egregious scenarios like the one of The Pirate Bay: the
Court’s findings are applicable to different types of online platforms, as well
as operators with different degrees of knowledge of infringements committed by
users of their services.

In my view the judgment is expected to
have substantial implications for future cases (including at the level of
individual Member States), and overall prompts a broader reflection on issues such as
the interplay between primary and secondary liability for copyright
infringement, applicability of the safe harbour regime within the E-Commerce
Directive, as well as the current EU copyright reform debate, notably the
so called value gap proposal within Article 13 of the draft
Directive on Copyright in the Digital Single Market.Further to a request of the
International Federation of the Phonographic Industry (IFPI), I prepared a
paper that would explore the possible implications of the judgment. The paper is going to be published as an article in the European Intellectual Property
Review later this year. In the meantime, you can find a pre-edited version here.

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